Lectures and Essays | Page 9

and of that colonial system which formed a most important
and beneficent part of her empire. We have derived the name colony
from Rome; but her colonies were just what ours are not, military
outposts of the empire, propugnacula imperii. Political depletion and
provision for needy citizens were collateral, but it would seem, in early
times at least, secondary objects. Such outposts were the means
suggested by Nature, first of securing those parts of the plain which
were beyond the sheltering range of the city itself, secondly of guarding
the outlets of the hills against the hill tribes, and eventually of holding
down the tribes in the hills themselves. The custody of the passes is
especially marked as an object by the position of many of the early
colonies. When the Roman dominion extended to the north of Italy, the
same system was pursued, in order to guard against incursions from the
Alps. A conquering despot would have planted mere garrisons under
military governors, which would not have been centres of civilization,
but probably of the reverse. The Roman colonies, bearing onwards with
them the civil as well as the military life of the Republic, were, with the
general system of provincial municipalities of which they constituted
the core, to no small extent centres of civilization, though doubtless
they were also to some extent instruments of oppression. "Where the
Roman conquered he dwelt," and the dwelling of the Roman was, on
the whole, the abode of a civilizing influence. Representation of
dependencies in the sovereign assembly of the imperial country was

unknown, and would have been impracticable. Conquest had not so far
put off its iron nature. In giving her dependencies municipal institutions
and municipal life, Rome did the next best thing to giving them
representation. A Roman province with its municipal life was far above
a satrapy, though far below a nation.
Then how came Rome to be the foundress and the great source of law?
This, as we said before, calls for a separate explanation. An explanation
we do not pretend to give, but merely a hint which may deserve notice
in looking for the explanation. In primitive society, in place of law, in
the proper sense of the term, we find only tribal custom, formed mainly
by the special exigencies of tribal self- preservation, and confined to
the particular tribe. When Saxon and Dane settle down in England side
by side under the treaty made between Alfred and Guthurm, each race
retains the tribal custom which serves it as a criminal law. A special
effort seems to be required in order to rise above this custom to that
conception of general right or expediency which is the germ of law as a
science. The Greek, sceptical and speculative as he was, appears never
to have quite got rid of the notion that there was something sacred in
ancestral custom, and that to alter it by legislation was a sort of impiety.
We in England still conceive that there is something in the breast of the
judge, and the belief is a lingering shadow of the tribal custom, the
source of the common law. Now what conditions would be most
favourable to this critical effort, so fraught with momentous
consequences to humanity? Apparently a union of elements belonging
to different tribes such as would compel them, for the preservation of
peace and the regulation of daily intercourse, to adopt some common
measure of right. It must be a union, not a conquest of one tribe by
another, otherwise the conquering tribe would of course keep its own
customs, as the Spartans did among the conquered people of Laconia.
Now it appears likely that these conditions were exactly fulfilled by the
primaeval settlements on the hills of Rome. The hills are either
escarped by nature or capable of easy escarpment, and seem originally
to have been little separate fortresses, by the union of which the city
was ultimately formed. That there were tribal differences among the
inhabitants of the different hills is a belief to which all traditions and all
the evidence of institutions point, whether we suppose the difference to
have been great or not and whatever special theory we may form as to

the origin of the Roman people. If the germ of law, as distinguished
from custom, was brought into existence in this manner, it would be
fostered and expanded by the legislative exigencies of the political and
social concordat between the two orders, and also by those arising out
of the adjustment of relations with other races in the course of conquest
and colonization.
Roman law had also, in common with Roman morality, the advantage
of being comparatively free from the perverting influences of tribal
superstition. [Footnote: From religious perversion Roman law was
eminently free: but it